Wednesday, March 3, 2010

Special 1st DCA Watch -- WTF??

I just had a chance to review this fresh 1st DCA opinion on whether the PSC was correct to order the public dissemination of top FPL executive salary information (compensation over $165k).

The PSC determined they could release the salary info because it was specifically exempted from the definition of "proprietary confidential business information" in Section 366.093(3):

(3) Proprietary confidential business information means information, regardless of form or characteristics, which is owned or controlled by the person or company, is intended to be and is treated by the person or company as private in that the disclosure of the information would cause harm to the ratepayers or the person's or company's business operations, and has not been disclosed unless disclosed pursuant to a statutory provision, an order of a court or administrative body, or private agreement that provides that the information will not be released to the public.

Proprietary confidential business information includes, but is not limited to:

(a) Trade secrets.(b) Internal auditing controls and reports of internal auditors.(c) Security measures, systems, or procedures.(d) Information concerning bids or other contractual data, the disclosure of which would impair the efforts of the public utility or its affiliates to contract for goods or services on favorable terms.(e) Information relating to competitive interests, the disclosure of which would impair the competitive business of the provider of the information.(f) Employee personnel information unrelated to compensation, duties, qualifications, or responsibilities.

The 1st reversed, however, saying that the phrase "unrelated to compensation" gives only "some indication" that employee compensation amounts may not be confidential proprietary business information, but that the phrase "includes, but is not limited to" means that there could be other types of confidential information beyond those listed in (a) through (f) -- like, say information relating to employee compensation.

Alternatively, the 1st seems to think that although employee compensation information could be expressly excluded in (f), it could somehow worm its way back in as a "trade secret" under (a) or could be "competitive business information" under (e).